June 08, 2007

Shorter Reggie: I Will Remember Your Interest in Public Service the Next Time Someone Really Needs It

by emptywheel

As I was reading the Amicus Brief from Robert Bork and friends today, I was thinking to myself, "Jeebus! They sure pulled this together quickly, with 12 fancy lawyers agreeing on a brief within 72 hours. You think maybe they had this in the works ahead of time?"

Well, apparently, Judge Walton is thinking the same kind of thing. Check out the footnote in his order allowing Bork and friends to submit their brief.

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

Ouch! You think maybe he didn't appreciate the heavy-handed intervention into his case? You think maybe he didn't appreciate having 12 fancy lawyers suggest he can't make his own decision in this matter?

I'm reminded of Judge Walton's face when Ted Wells insisted on reading the letters from Wolfie et al before the sentencing. He was staring up at the ceiling with his lips pursed, a look of disgust that Team Libby insisted on carrying out their big show regardless of any effect it might have on Walton. Walton was just a prop, it seemed, in Ted Wells' circus.

And from the look of things, Walton isn't any happier about this latest stunt. I'm not so sure that the Bork brief is as easy to ignore as Wolfowitz' letter. But Team Libby sure seems prepared to piss off Walton to get what they want out of him.

Comments

> I'm not so sure that the Bork brief is as
> easy to ignore as Wolfowitz' letter.

My understanding is the Wolfowitz letter contains a description of Libby working tirelessly to prevent the outing of a CIA agent in an earlier job? If so, can the judge cite that as _confirmation_ of his decision that bail is not appropriate?

The Bork piece is an interesting piece of legal work. The Scooter legal team is creating their own "precedent" to refer to. I am certain Scooter's defense team will "cite" this distinguished group--which, as Judge Walton so aptly notes, sprung up so quickly and so conveniently--as support for their positions.

More value for Sunday morning PR talking point spouters than legal value, I expect.

I think TomJ nails the secondary motivation here. The primary motivation is to play to the media & make it easier for Dubya to give a pardon, but if they can taunt Walton into losing his cool (and thus creating a grounds for appeal) that's a handy bonus.

OT, but maybe not so much--Cheney needs a new batter for his pacemaker. And, as somebody who does writing workshops in a prison, I love Walton's footnote. Yes, more justice for all. Please. Although I'm not sure my guys would want to be represented by Bork et al.

Someone in previous comments/threads may have pointed this out, but the message Walton appears to be taking (accurately) from the support letters and this brief is that Libby is a man of enormous privilege and influence who will feel no shame or guilt for his actions unless he is sent to prison for a substantial period of time.

Thereby making "general deterrence," as Walton put it in his sentence -- the need to make an example of Scooter for other govt. officials -- all the more imperative.

I certainly hope so. Once Scooter is in prison, his loyalty and tough fascade may start to crumble, if the past is prologue. And the RWingers know it. They can't let it happen or the House of Cards may tumble.

Now that I've read the brief, I can say that I don't think Walton is going to buy this. He swatted this argument off when Team Libby made it, and I just can't see him taking it more seriously now that Nixon's hatchet man is the one trying to argue it. Yes, I think this brief gives Walton some cover if he decides to keep Libby out of jail, but Walton's had more than enough cover already, and he hasn't seemed all that interested in using it. I also think that his footnote was more than just pure snark--I expect all of these people to be hauled in for pro bono work over the next few years.

Swopa - Thereby making "general deterrence," as Walton put it in his sentence -- the need to make an example of Scooter for other govt. officials -- all the more imperative.

Unfortunately Scooter and his friends won't learn anything. Scooter's a victim don't you see. Fitzgerald was out to get him and there is a left-wing conspiracy. So prison will likely only reinforce his beliefs vs. using the time to reflect on choices made. Remember he is a Republican and it seems lately to be a Republican means facts don't matter.

a gaggle (that's an even dozen, in
non-legal parlance!) of law professorsjust got paid a pile to have asked
to weigh-in on scooter libby's pending
motion for bail, while his appeals are
handled by the courts. . .

and, of course -- the aim is to suggest
that it is a "close question" as to whether
judge walton's ruling -- sustaining patrick
fitzgerald's authority under the independent
counsel statutes, was correct. . .

forget the "all the grand-standing big
money can buy academics love" facets
to this motion -- and simply focus on that clearly-
well-grounded, solid and street-wise judge -- reggie walton.

he accepts their amicus papers, but drops a veryclever -- and worldly -- footnote, to his order. . .

i am in awe of walton. and i am disgusted that
these professors want to make scalia's
dissent (i.e. not binding law) the basis
for the assertion of a "close question". . .

arguing for the change of existing
law is not the same as presenting a close,
or conflicting set of cases, under unsettled
law. . . scalia's dissent in morrison has
no effect whatsover as law. nor does this
largely spurrious amicus motion, drawn with all
the resources of the r.n.c./scooter
libby defense fund could buy legal accumen
mustered by these wise-old-graybeards.

Frank Probst -- "I also think that his footnote was more than just pure snark--I expect all of these people to be hauled in for pro bono work over the next few years."

I think Nolo started heading in the right way. Would these people do something like this pro bono? I suspect not... I wonder who paid them?

Heroes appear from many venues... The Pat Fitzgeralds, the Reggie Waltons, the Emptywheels. We don't have to believe as they do, nor do they have to believe as we do -- but they will do their level best to do what is right and true, regardless.

On the other hand, we have people such as the authors of this brief who are suddenly hot and bothered about some legal issue that should have been addressed long ago (if, in fact, it really is an issue), or those who wrote letters to support good ole Scooter after things don't go how they think they should -- and they think they are doing what is right and true, except that they have lost a sense of what matters or is truly important.

This brief is a strong example, in my non-lawyer opinion, of just how much the law is up for sale to the highest bidder in this country. Maybe the bid is not in money, so much, but in power, or self-perceived power.

There is always abuse of institutions, it seems, and someone will always try to stretch the rules to fit them. If Bush and Cheney and Rove and all their friends succeed in their attempts to subvert our Constitution, I suspect that no one will ever believe in the rule of law again. Total chaos will prevail.

I hope and pray that one more hero can come forward and just blow the whistle in such a way that this madness can end...

LOL! Thanks for the Friday evening laugh, Marcy. A two-fer, 2 in a row!

Sojourner brings up an interesting point. Wouldn't the appropriate time to attack Fitz's legal status have been before the trial started? Oh, maybe they were so full of themselves that they thought they could handle him and his little rag-tag gaggle of fellow public servants.

Reggie, Fitz and Marcy. A Gooper, a Dem and unknown. Who woulda thunk it?

Maybe Judge Reggie should suggest they do an amicus brief on the Military Commissions decision rendered in Guantanamo last week, or maybe habeus corpus, you know - some of the small potatoes stuff that's been the subject of some recent discussions in the legal community.

Judge Walton probably needs to be a little more circumspect if youse guys don't want his rulings reviewed even more carefully by the Court of Appeals. I would bet that most if not all of these people have done a great deal of pro bono work; and we don't really know how effective Judge Walton was as a public defender before he went to work for the man.He comes across as a man who doean't like the scrutiny; a thin skin won't work on the district court.

if i close my eyes, paris hilton wailing in outrage, 'It's not right!" sounds exactly like the whole scooter rescue squad. hey, so what if they have their day in court and are convicted? going to jail 'is not right.' scooter libby... the thinking man's paris hilton. who knew?

The tactical belligerence and ignorance of the defense team continues to astound me. If they don't know that there is a pardon definitively waiting for them, and they are just laying maximum cover; then this effort is starting to border on insane. For starters, this is a questionable issue for amicus intervention, this is really a particularized issue to be argued by the defendant on what he believes his merits on appeal are. Secondly, as noted above, this is a clear attempt to intimidate a judge that has consistently shown himself to not be amenable to such. This aspect takes on an additional element I haven't seen discussed yet, namely the lead of Bork. Bork is a deservedly controversial character, but was very influential for a period on the DC Circuit Court of Appeals, the very forum that will be reviewing Walton's decisions. An incredibly ham fisted effort. Walton has a right to be offended. Rest assured however, regardless of what he says in dicta-like footnotes, that his written decision and order will be phrased very carefully and in as bulletproof a manner as possible.

Arthurize - A little late and weak to the show eh? Yes, we really do know what kind of record Judge Walton had as a public defender, as well as his records in the Department of Justice and Superior Court Judge. Those things are available and were made a part of the public record during his confirmation. It is simply you that are ignorant of the facts. Do you have anything else bright to add?

I hate to bring up Paris, but she crumbled in less than 3 days -- and she was getting "celebrity" treatment from the sherrif's department. One wonders how Libby will take to prison as part of the general populace.

This group of Amici are all card carrying, kool-aid gulping, right wing nut jobs (with the exception of Al Dersowitz, who is an equal opportunity nutjob). They are bought and paid for luminaries on a daily basis, but I seriously doubt they received any financial renumeration specifically for this effort. They were proud and eager to do it. You know, for THEIR country. Just not yours and mine.

Bmaz - agreed, I really doubt that they were paid to produce the AB. Also, having all these "luminaries" sign their name to this (and it was in my mind the work of a bright clerk, the idea that these egomaniacs would sit down and actually work together to produce a coherent result is laughable) is a VERY blunt instrument to use against Judge Walton - it's practically a "Sneer" campaign against him, and I suspect that all the media except perhaps Dahlia Lithwick will see it as a very substantial legal argument, even though I find it dubious (and admittedly I am an amateur in American law). I suspect that Bobo and his ilk will start an innuendo campaign that Judge Walton was really in over his head, some kind of affirmative action product. I think this is all about creating media talking points that credulous reporters can put legal celebrity names like Bork and Dershowitx on.

PS And I feel compelled to put in a word for poor Paris - certainly in my jurisidiction, a non-violent first time probation breacher would not get jail - house arrest at the most, so I find myself agreeing with Geragos that she may have been made an example of because of her celebrity. I know almost all readers of this blog are progressive types, but having seen the barbarism of the prison system even in a relatively progressive country like Canada, I have sympathy for anyone who spends any time at all incarcerated.

The thing I find so deliciously ironic is that here [2007] we have a Special Prosecutor trying to uncover the extent of the corruption in a Corrupt Administration.

During Watergate, as many of us [old farts] recall, we had a similar situation. The Corrupt Administration got both scared & tired of the SP's investigation, so it told the Attorney General, Elliot Richardson, to fire him [Archibald Cox]. Richardson refused, and resigned.

So they went to the next in line, [William Ruckelshouse], and he too refused to fire Cox & resigned.

So, Door #3, a man with no principles, Robert Bork, was asked, and he happily complied.

Bork's back, and up to his old tricks: standing in the way of efforts to unearth corruption and find the truth.

EW - I'll try to speak to the ones I'm familiar with - true, Parker could be considered a liberal, but Maltz is a Bork-loving "originalist", Merrill is conservative despite his perch at Columbia, Pushaw and Nagel have a conservative bent as well.

The particular Clause also rears its head in the latest document dump (http://www.talkingpointsmemo.com/docs/doc-dump-2/?resultpage=10&). There was a discussion about it when they gave Monica the authority to hire and fire. It seems to be a well studied Clause of this administration, and we all know they have a limited repertoire.

Since they brought this up earlier, and it was shot down (http://www.washingtonpost.com/wp-dyn/content/article/2006/02/23/AR2006022302087.html), there's probably no reason the defense wouldn't have solicited the dirty dozen's opinions, had them write it down and kept it on ice until they needed it, producing it later with the correct date on the top.

EW - In answer to the question as to the presence of liberals in the luminous group. Eh - I dunno, not so much really. The marquee names are Bork, Dinh, Kmieck and Dershowitz; none of those fit the bill. Most of the others, some of whom I recognize, some I had to look up, are Federalist society types; one is a protege of Ken Starr at Peperdine. Amar is kind of interesting, I read some of his stuff a while back and found him pretty intelligent, can't remember what the subject was, but I think it had to involve Section 1983 civil rights litigation, which used to be a large part of my practice many moons ago. I will guarantee you this: none of these signatory amici have the same liberal view and interpretation of the Constitution as you, I and the vast majority of readers and contributors here; their relative personal politics notwithstanding.

My bet is that Team Libby has given up all hopes on the merits, and they're trying to get the judge to say something colorably prejudicial so they'll have something to either appeal, or hang a pardon request on. I'll also bet the judge knows this as well.

Robert Bork? Bronze medalist for worst person in the world today on Olbermann? Bork, who famously argued against punitive damages and for a cap on damages for pain and suffering, and, when he slipped and fell on his way to the dais to speak at the Yale Club (!), he sued for punitive damages and $1,000,000 in pain and suffering damages? That Robert Bork?

Oh I think when reality sets in and lil Scooter is frogmarched to prison, we will witness a temper tantrum of historic proportions with Scooter balling his eyes out, wailing and screaming "it's not fair mother"...and we will shake our collective heads in awe as suddenly Paris looks so brave and stoic...sweet justice...

Lukery - I did not comment on what Judge Walton's relative record is on the merits, I merely observed that his record as to his history before being appointed to the DC District Court bench is known and publically available if bomb throwing commenters like Aurthurize wish to actually look for it instead of ignorantly denigrating it for an uninformed and pre-determined purpose.

Paul Wolfowitz, departing World Bank President and Libby's former mentor and professor at Yale University - Skull and Bones Wannabe:

"It is painful for me to reflect on the fact that his life would have been very different if we had never met that warm summer's eve. He would almost certainly now be a successful attorney in Philadelphia, enjoying a comfortable life with his wonderful wife and their two beautiful children. However, our country would have also been deprived of the very considerable service that he has rendered. ...Mr. Libby has made many other contributions to our common security and put in many long hours of selfless hard work not out of ambition but solely out of a deep sense of responsibility and a desire to make this country safer from all of us."

In case there's been no mention as yet, my local cable has PatFitz' commencement address at Amherst scheduled for tomorrow @ 8:45 CDT. I think it repeats again, but right now, I can't find it on cspan.org.
It's been a long day.

sorry Bmaz, no weakness here. If you think a district judge deliberately insulting any amici, much less this group (not Bork, I doubt this ftnote means anything to him) is an appropriate judicial comment, have at it. I guess you're a lawyer, as am I; I guess you've been at it longer than me (28 years); therefore I'm sure you know more than me (naturally). If where you practice judges routinely indulge in this, then bless you, you're welcome to them. Hang his portrait in the hall.And by the way-if you think this was worked up in 72 hours, as Walton seems to, I have some valuable property for sale in the city of New Orleans. Guaranteed not to flood.

Arthurize - 1) Walton did not insult your amici illuminati; he merely congratulated them on their outstanding community service. 2) to any extent the Judge did insult the amici illuminati, it was certainly no greater in proportion to their arrogant intervention on this issue at this phase of the case. What a crock of dung. Where were they at the start of the prosecution when you could at least make a wafer thin argument that their intervention would be ripe and appropriate? This effort, at this time is arrogant and hamfisted and is an insult to the court. 3) I have been at this for over two decades, but will defer to your advanced age. 4) If you have property for sale in New Orleans at a discount price, I very well might be interested. In case you haven't checked lately, values are actually skyrocketing there. 5) If I misjudged your attitude, I apologize. However, your comment came off fairly antagonistic, and in case you have not noticed, Judge Walton is pretty well thought of around here. I agree with that opinion, I think Judge Walton pulled off a Herculean effort on a difficult and controversial case and conducted himself with remarkable dignity along the way. I will say this, I sure would not want him sentencing any of my clients, but that was his reputation long before this case and as another commenter noted, that was a reason Bush appointed him in the first place. Irony abounds in the universe eh?

The thing you have to remember about Paris is, she was caught driving with a suspended license, twice. That is a matter over and above mere breach of probation. Driving without a proper license is increasingly viewed as a major offence in California these days, because there is a big problem with unlicensed drivers on the roads there. Show yourself a scofflaw on this issue anymore and you will get spanked.

WillyT - Jeralyn has obtained (from Jason Leopold) a copy of the June 5th sentencing hearing transcript which she is going to excerpt highlights from on her blog, as time permits (transcripts are available, for a price, from the court reporters who make them, but not made available to the public via PACER):

http://www.talkleft.com/story/2007/6/8/17398/75179

With regard to the issue of the Special Counsel's appointment, I wanted to throw an opinion of Jim Comey's into the mix here, from his answer to one of the just-released written questions Senator Schumer posed to Comey after his Senate testimony. To wit:

Question #9: You are the Department official who decided – after I called for it – to appoint
a Special Prosecutor in the Valerie Plame affair. After John Ashcroft recused himself from the issue, you appointed your former colleague, Patrick Fitzgerald. And you performed the delegation of duties to Mr. Fitzgerald with respect to the Plame investigation.

Senator Schumer: "If Mr. Fitzgerald were fired as U.S. Attorney, would he have been able to continue as Special Prosecutor under your delegation of authority?"

Former Deputy Attorney General James Comey: "I don’t believe so because he was appointed in his capacity as United States Attorney."

What we have with this brief is sheer bullying, and the streetwise Judge Walton knows a bully when he sees one.

With the egos involved, I doubt that any of the signers actually wrote it and got the others to sign on, much less this group meeting over a long conference table for an afternoon of scribbling and camaraderie. It is probably the product of a brilliant and anonymous clerk (as proposed above) with an even dozen (the holy number) of eminent peers signing as equals: power in the aggregate, without individual exposure.

Like a Japanese robot from the movies, this is impressive for its bulk and threatening aspect, bellowing and displaying and puffing mightily... but monster robots are guided at the core by children and cowards... afraid, they use fear as a weapon. Such fear is its own weakness. If you have to call in a bully, you've lost the argument.

If the question of Fitzgerald's legitimacy was meritorious, why didn't any of them speak up upon the appointment of a Special Counsel? Waiting until the case was lost, the jury spoke, the sentence pronounced seems like waiting until the ushers are cleaning up the empty theatre to complain about the choice of librettist. The reviews are already in.

Why fear and not acceptance? Perhaps fear that whatever Libby was obstructing will be revealed, and their entire web will unravel and shrivel in the light? By assembling a monster robot at this juncture, they are indicating that they have more to protect. Much more.

Here is a question for the Amici. Exactly what prejudice do you allege that Mr. Libby has suffered as a result of this question of dominion and control you raise? Answer: none. The rationale behind a control and supervision argument is inherently that the actor at issue took, or attempted to take, some inappropriate action or excess that the control and supervision would have prevented. Now understand that this is somewhat of an equitable as opposed to legal argument; but really, where is the beef?

Secondly, assuming for the sake of argument that the etherial distinction the Amici parse out has some merit (and I grant that ONLY for the purpose of argument), the Amici rest their entire discussion on the premise that Fitzgerald is not a duly constituted "inferior" officer. Where is any discussion of whether the special counsel is a duly authorized de facto acting superior, or primary, officer with jurisdiction limited to this investigation and it's resulting prosecutions, if any. There can be acting cabinet level officers. In this instance, the special counsel is standing in the stead of the Attorney General, who was effectively incapacitated by conflict. If the special counsel is the equivilent of the Attorney General, just with a limited jurisdiction, then he arguably possesses the same status of the Attorney General vis a vis the President. The Amici do not argue (wisely) that the Attorney General would not have jurisdiction if not conflicted, so how then do they make that argument to the co-equal? trust me, I would not want to hang my hat on this sophistry were I having to fight this. However, it fits in with Walton's question of if not this, then what? Can't be an inferior officer, can't be a superior officer; so as long as we get the Attorney General and the Deputy Attorney General sufficiently involved in a crime, it cannot be investigated and prosecuted. Excellent plan Amici. As long as the top law enfocement officials in the country are in on the crime, or sufficiently conflicted therefrom, it is open season for looting and plundering. These people have a lot of gall. Again, for those chomping at the bit to clobber these thoughts, it is a theoretical discussion. Have at it.

Actually, Paris Hilton's purpose in life may be coming to light. She has tapped an unambiguous, strong public anger against celebrity special treatment in the US justice system. If this means that some of that anger could now spill over to politicians who get out too quickly or even get pardons, then her heretofore seemingly shallow life, may have some important public outcomes.

I'm puzzled by Wells continuing to read aloud cherry picked letters written in support of Libby after Judge Walton stated he had already read them. Presumably Walton was implying the court's time was being wasted. Did Wells continue, risking offense to the court, because of perceived PR value in reading them aloud to the media present? Or was he trying to get the language of these positive letters specifically incorporated into the hearing transcript itself so as to assure the language could not be missed by any reviewing body? I assume any reviewing body would have access to all of the letters. Am I missing something here?

This SWAT team of legal scholars is intimidating in its membership and the timing of its argument. It seems Cheney-inspired, like a second IED that goes off in the lone alley-way after the first drives those in the market square into it. I would be surprised if a streetwise lawyer like Judge Walton wasn’t pissed at this tactic.

Judge Walton knows that this little coterie did not gin up this brief in seventy-two hours; hence, his sarcasm at their paper-thin claim to have done it as a public service. They are supplying favors pulled in by Team Scooter. (I’ve never understood why a fifty-ish, double-Ivy League, top-flight bureaucrat insists on using this diminutive. It doesn't do much to make him less formidable; is it a cultural artifact, like calling him Muffy, or infantilizing, like calling a him Pooty Poot?)

As for which side should be worried about pissing the other off, both have lifelong tenure, but Walton’s a federal judge in his own backyard. He knew this was a career-limiting assignment, like being a JAG ordered to defend a Gitmo prisoner. He either took a dive and saved Libby from himself, or did what he does in every other case and incurred the lifelong wrath of Team Scooter. I can’t imagine he hesitated very long about his decision.

": In this instance, the special counsel is standing in the stead of the Attorney General, who was effectively incapacitated by conflict."

I think this is an excellent side argument that fits nicely into the "if this kind of arrangement is not legal, then how can cases in which the hierarchy of the justice department has conflicts (or appearance of conflicts) of interest be prosecuted?" argument.

I also hope that Walton throws in a little extra snark toward Bork, mentioning that the President maintained his "supervisory" role, which Bork himself executed on behalf of President Nixon when he fired Archibald Cox.

I also love the fact that they are arguing that this is a "close" question of law because of the reasoning found in a dissent in a case that was not closely decided (Morrison was 7-1).

And by the way-if you think this was worked up in 72 hours, as Walton seems to, I have some valuable property for sale in the city of New Orleans.

I think this statement makes arthurize a certified concern troll. Walton mentioned the "72 hours" to demonstrate that he knew precisely what Libby's defense team was trying to pull -- my guess is that the brief is actually an adaptation of what Libby's lawyers had planned to submit to the Appeals court in pursuit of cert -- add a few sentences asserting that it was a "close question" and voila! instant amicus, just append some prominent names at the end!

The day before the Saturday night massacre, Nixon himself ordered Cox to discontinue pursuit of the Watergate tapes. It was Cox's refusal to obey that order that lead to Nixon demanding that Richardson fire Cox, the "saturday night massacre", and Cox's firing by Bork.

If the SWAT team is ultimately successful in its argument that Fitzgerald’s status wasn’t properly authorized, I assume that the prosecution and conviction would be tossed out. No need for a pardon or commutation of sentence.

As I understand it, to be an “inferior” officer such as a US Attorney, Fitzgerald must have been nominated and confirmed, and must work under the effective supervision of his department. In this otherwise routine assignment of a case to a sitting US Attorney, Comey was concerned that the White House or senior DOJ lawyers closely tied to it might exert undue political pressure. So, Comey authorized Fitz to act “independently” of departmental supervision. The SWAT team argues that that step voided Fitz’s status as an “inferior officer” under the Constitution and took away his authority to act as prosecutor in the case. They argue that the issue is at least novel, that no authority provides a clear answer for it, and that it presents the necessary “close question” of law that would justify allowing Libby to remain free pending the outcome of his appeal.

Concluding that Fitz’s appointment is void is taking a leap to the most radical interpretation possible in order to reach the goal of voiding Libby’s conviction. That would be an ironic outcome for a legal system that so prides certainty that it refuses to reconsider capital punishment cases when later-discovered DNA evidence proves the defendant innocent because it would introduce “uncertainty” (justice). It would also be a leap into the impractical and nonsensical. A shoehorn wielded by Silberman and Kavanaugh, or by Alito and Scalia, might squeeze that foot into the intended legal shoe, Scalia did give us Bush v. Gore, but it would take some work. The SWAT team’s argument is a possible, but not a likely interpretation, which should not qualify as the “close question” of law required to keep Libby free pending his appeal.

There are several more likely outcomes. A court would normally want to find the prosecutorial authority valid, for the same reason that it presumes that statutes are consistent with each other and the Constitution, and why it decides cases on constitutional grounds only when no lesser laws would adequately support their decisions. Courts assume that legislatures and executive agencies intend to comply with the law and act within the limits of their powers (this administration excepted). They ordinarily bend over backwards to avoid finding otherwise, a legal conservatism that this administration embraces when it furthers its goals.

The SWAT team argues that Comey’s assignment of this case to Fitz [inadvertently] voided Fitz’s authority to prosecute it because it relieved Fitz from oversight (and necessarily took away the DOJ’s authority to oversee him).

That seems wrong on its face. Comey’s assignment could not have that legal effect. US Attorneys always act with considerable autonomy and little direct supervision; Main Justice rarely intervenes in decisions made in individual cases. Fitz also remained free from routine supervision not because the DOJ had lost its authority to oversee him, but because he complied with the highest standards of prosecutorial conduct.

If the SWAT team’s argument is valid, then had Fitz transported Libby to Gitmo and lost him there, Mr. Gonzales would have had no departmental authority to intervene. That’s nonsense. Mr. Gonzales would have had the authority and the obligation – at the time, not years later - to intervene in order to protect Libby's civil rights from the wrongful actions of its employee prosecutor. Mr. Gonzales would have been accused of being corruptly partisan had he failed to do so.

A more conservative interpretation of Comey’s assignment letter that promotes certainty and the administration of justice is that Comey merely intended to create a Chinese wall. Law firms do this all the time. Gibson Dunn in LA, for example, presumably has one around ex-US Attorney Deborah Yang. That doesn't void her status as a partner. It doesn’t limit Gibson Dunn’s liability for her acts as a partner, or relieve anyone of their ethical obligations as attorneys. For similar reasons, Comey's assignment to Fitz couldn't relieve the DOJ of its authority and obligation to oversee him, or Fitz's obligation to comply with the standards of prosecutorial conduct.

The SWAT team’s sound and fury signifies nothing but its creativity. My guess is that Walton will send Libby to jail and let this question, too, go up on appeal.

Walton is a really no-nonsense guy who came off the streets. His is a rare pedigree in the federal judiciary. To say he is not amused by these clowns is an understatement.

He is used to having to send to jail kids, really, who never got much of a shake in life and end up in the drug trade. He is a very tough sentencer. I've been in his courtroom when he has sent guys off to jail and you know there is steel in the man, but also a sense of self sufficient enough to know that he could have been going where these guys are going. Privileged white guy named Scooter -- probably doesn't really resonate with him.

I really like Walton's tack on this twist..that the stuffed-shirts who penned the letter should each be required to defend a homeless person in court sometime this year. If they have the time and energy to openly defy "The Law" as it stands, and to pose like some ad-hoc everyman's Supreme Court, they should do something worthy with that time.

As more than one observer has commented, this will be used by, and might actually have been created TO provide Fox and the rest of the RWM and MSM ammo to defy the law in general, now that the verdict and the sentence are already in.

"no underlying crime..." has always been and will continue to be their mantra, despite the fact that Libby, regardless of who leakjed to him, leaked like a seive with information about a covert CIA agent, for the sake of political intrigue, and to protect Cheney's Big WMD Lie. Libby's cell-bound, and Walton isn't about to be intimidated by a posse of old beltway insider fat-fart lawyers.

But who knows, maybe Libby can get one of Paris Hilton's "get out of jail early" cards.

mighty mouse;
good point...
Earl of Huntingdon; your comments really cover some legal ground, and I agree wholeheartedly that this is really another sophisticated attempt to put a legaleze twist to what should be simple law. You hit the proverbial nail on the head here;

"Main Justice rarely intervenes in decisions made in individual cases. Fitz also remained free from routine supervision not because the DOJ had lost its authority to oversee him, but because he complied with the highest standards of prosecutorial conduct.

It sounds like these high-dollar lawyers are saying, in a round-about way, that Fitz was too independent of the DOJ, and that the DOJ should have had a bigger hand in the Libby event... which would only have impeded the progress, if not halted it completely.

. . .It sounds like these high-dollar lawyers are saying, in a round-about way, that Fitz was too independent of the DOJ, and that the DOJ should have had a bigger hand in the Libby event... which would only have impeded the progress, if not halted it completely.

Which is what they really wanted all along.

Posted by: JEP | June 09, 2007 at 09:41

jep: that is EXACTLY what the are
saying! -- not "round-about", though -- here
is "the gaggle graybeards'" closer, and
i quote [emphasis above, and below, supplied]:

. . .Because Special Counsel Fitzgerald was directed, in writing, to act “independent of the supervision or control of any officer of the Department,” there is no supervisor to whom he is subordinate and no apparent way to bring him within the test set forth in Edmond. [Ed not: but edmond is not the controlling case law, here -- as most acknowleged.]

“If an official is not appointed by the President, but rather through some other avenue available under Article II for inferior officers, then political accountability needs to be ensured in some other way.” [citations omitted]. With no supervisor, Special Counsel Fitzgerald is too independent to make his supposed “superiors” politically accountable for his actions, and it is at the very least a close question whether themere power of removal does anything to solve the problem. . .

-- bork amici filing: 06.08.07

wow -- that is astonishing, no?

they take some remarks made by laurence tribe,
a good man, and constitiutional expert (but,
again, his "remarks" are not law, in any sense), and
stand them on their head to suggest, wrongly of course,
that fitzgerald must be held politically accountable
(through his "superiors") -- for bringing cases against
administration officials -- in order not to upset the
delicate constitutional interests in play, here. . .

quoth sen. sam ervin (circa 1973): "poppycock!"

and, pardon me, but -- WTF?!

here endeth my rant.

[actually, i'll probbably flesh this out
into a full-on post over at my joint, later today,
after the saturday mountain-bike ride. . .]

In the federal courthouse in Washington, judges have a team of beefy deputy marshals protecting them from any possible run-ins with criminal defendants.

But on Chevy Chase Circle NW last weekend, U.S. District Judge Reggie B. Walton found himself forcefully stopping an assault -- and wrestling another man's attacker to the ground.

The judge said he came upon the fight in the fairly quiet traffic circle, pulled the attacker off his victim and then held the man on the pavement until D.C. police arrived on the scene. "He started toward me, " Walton, 56, recalled in an interview this week. "I had to take him down."

Walton's story began about 6 a.m. last Saturday, when he was driving his wife and daughter to the airport for a short trip to Aruba. When he drove into the circle, a taxi blocked a right lane and two men argued next to it, he said. Then he saw both bodies fall to the ground. A larger man was on top, striking a smaller, older man, who was yelling for help.

"Initially, I really paused. In these situations, you don't know if a gun or other weapon is involved," Walton said. "But I could hear the man frantically crying out: 'Help me. Please help me.' "

The judge, who was a football player in college, is physically fit. The man getting the best of the cabdriver was in his twenties and more than 6 feet tall, compared with the 5-foot-9 judge.

But the judge grew up in the gritty steel town of Donora, Pa., and as a teenager landed in court three times for fighting. He explained that he got out of control during a period when his father was working two jobs.

Walton credits one fight with scaring him to focus on school and, ultimately, become a judge. He and his buddies decided to seek out some other youths who they heard had been "messing with our girls." The fight escalated from punching to one of Walton's friends stabbing a member of the other group with an ice pick. Walton and a friend rushed him to the hospital, and Walton said his fighting days ended there.

Walton has been a judge for nearly a quarter-century. He became a D.C. Superior Court judge in 1981 and was appointed to the federal bench in 2001. Walton told the man last Saturday that he was a judge, wouldn't hurt him and would just turn him over to police.

The judge said he's not sure what happened after that. When police arrived, he said, he gave them his account, then hurried his family to the airport to make the flight. He never learned the names of the men. As of Thursday, he said, police had not called. A D.C. police spokesman said yesterday he could not locate a report of the incident or verify an arrest. Officers working in the 2nd District said their office no longer has computer capability to review 911 calls requesting help.

Walton doesn't recommend that everyone who sees an attack get involved. "Everybody's got to make their own decision," he said. "Some would say it wasn't very wise to do what I did. But then again, if you had a loved one in that situation, you would hope somebody would come to their aid."

Police spokesman Kenny Bryson said the cabdriver was lucky that the judge was passing through. Other cars whizzed by, the judge said, and one driver even honked his horn.

Will the WH now conduct an internal investigation of the CIA Leak and sanction officals that improperly handled classifed information?

Sorry, this is kinda off-topic.

Remember when Congress discoverd through testimony that the WH never conducted an internal investigation regarding the CIA leak nor did it sanction any offical involved?

I think the offical stated he didn't act because there was an ongoing investigation despite having the authority to conduct concurrent investigations and sanction officals independent of the criminal investigation.

If one of yours was about to head for the slammer for lying about a non-crime -- say, for example, Bill Clinton -- you would be going absolutely nuts. Your heads would be exploding.

Of course, none of you here say one word about the ORIGINAL leaker, Richard Armitage. Oh, that's right...he was one of Powell's boys! We want Cheyney!!! We want Rove!!

Oops...I guess we're gonna have to settle for Scooter.

Meanwhile, I daresay you would be outraged that a special prosecutor was given the plenary powers of the Attorney General with NO Senate confirmation, NO congressional oversight, and NO supervisions by the Justice Department.

But then again, all of you are bunch of snivieling little hypocrites, completely ovewhelmed by your Bush Derangement Syndrome.

You're all a bunch of small minded nits...just like Reggie Walton, who can do nothing but sneer.

Tim Griffin Analogy - Tou know, the Amici Illuminati are a godsend for fun discussion aren't they? i occurs to me that this group didn't raise any commotion over Tim Griffen, the Rovian hack, stalking the fine folks of Arkansas with a clearly defective "inferior" appointment status. But Pat Fitzgerald, a universally respected professional justice attorney, for whom they cannot even muster a real instance of harm, only that it was possible he could have run amok; well oh my, break out the smelling salts because they are evidently ready to faint. Dung and bunk. As I said above, these guys have a lot of gall.

Just wanted to say as an armchair observer, this discussion is terrific, not like any other, thanks to emptywheel and all of the posters.

I don't know where Walton or Fitzgerald went to college, but my guess is they learned justice long before they stepped onto a campus of "higher-learning." they most likely learned justice from their parents, family and communities in which they grew up.

bmaz, you suspect my middle initial is K because you, and so many on the left like you, are infected with a delusional sense of who is right and who is wrong -- and because you see fascist bogeymen (excuse me for being politically incorrect) bogeypersons everywhere.

Needless to say, you don't see a fascist bogeyman with special prosecutor Fitzgerald, who was NOT confirmed by the Senate and was subject to NO Congressional oversight. But, hey, he's on YOUR side, so that's just a peachy keen thing, right?

Of course, that's all you hypocritical lefties can do when faced with a real argument from people with real brains -- name-call.

Don't you see, that's what Reggie Walton did too -- name-call in his snarky sneering injudicious little footnote. Typically, though he lets facts get in the way of his snide remarks: Dershowitz, for one, spends half his time doing pro bono work. But because it's for Scooter, well, all the Amici are just a high-priced legal posse out to get a hall pass for that rich Jew Libby.

Oh, by the way, my middle initial is no K. Sorry to disappoint. Of course, all of you are disappointed so easily.

So, the Amici boys are pushing the notion that Fitzgerald's status as prosecutor was unconstitutional. I don't remember hearing a peep from any of them when Ken Starr was on the loose and violating every principle of the prosecutor's code.

Karl K - Fair enough on your name; that was perhaps uncalled for on my part. As for you bleating on hypocrisy, I note with some amusement that you scurried past the Tim Griffin analogy. Now, since you clearly are merely an interloper here to spew rather uninformed statements, you have no idea what position I have taken in the past on Griffin's appointment status vis a vis the validity of his prosecutions, you can not legitimately call me hypocritical. You on the other hand, have had to purposely avoid the analogy so we know your intellectual inconsistency.

Needless to say, you don't see a fascist bogeyman with special prosecutor Fitzgerald, who was NOT confirmed by the Senate and was subject to NO Congressional oversight. But, hey, he's on YOUR side, so that's just a peachy keen thing, right?

more wingnut stupidity.

Here is a clue. Fitz was confirmed as a US Attorney by the Senate. And it is not the least bit unusual to ask a US Attorney to step in to supervise a case outside their jurisdiction when there is an appearance of a conflict of interest within the office of original jurisdiction. Nor is it the least bit unusual for USAs themselves to grant independence to Asst USAs in cases where the USA may have the appearance of a conflict of interest.

The President has ultimate supervisory authorities of all employess of the Department of Justice. As I noted above, Nixon exercised this authority when he ordered Cox to cease his pursuit of the Watergate tapes. When Cox defied that authority, Nixon ordered Richardson and Ruckelshouse to fire Cox for insubordination. Richardson and Ruckelshouse refused to do so, because both had testified before Congress that they would not interfere with Cox's investigation---and Richardson resigned rather than be insubordinate to Bush, while Ruckelshouse was fired by Nixon for his insubordination.

Thus, the idea that Fitzgerald was not "supervised" is easily disproven by historical precedent. Bush chose not to use his supervisory authority over Fitz as is his perogative. But that authority exists whether Bush exercised it or not.

It seems to me that Judge Walton is really sick of the defense playing to someone other than him. I've never been inside a courtroom, except for being called (but never chosen) for jury duty, but judges really do seem to take the idea of "my courtroom" very seriously. Libby's lawyers have made a great show of ignoring what everyone knows about Judge Walton. Walton wears his self-image very openly. He's the very archetype of the streetwise professional black man who "made it" and metes out tough, but fair justice to the parade of petty criminals that flow through his courtroom. I have no idea if that's how he really is, but that is so clearly his view of himself. I'd be willing to be that more than one defendant has resented his lectures from the bench more than the stiff sentences he imposes. I think he knows that part of the defense's strategy has been to goad him into reversible error. He would have to interpret that as showing their contempt for him, and by extension, for the legal system itself. That footnote was his way of saying to the defense that they had picked the wrong judge to mess with (although I suspect that in his thoughts he replaced the words judge and mess with words I don't normally use).